Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 868 F.2d 1273 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Paul LUCATORTA, Defendant-Appellant.

No. 87-5311.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1988.Decided Feb. 8, 1989.

Before SCHROEDER, REINHARDT, and LEAVY, Circuit Judges.


MEMORANDUM* 

Defendant Paul Lucatorta appeals from his conditional plea of guilty for conspiracy to manufacture methamphetamine and intent to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 & 841(a) (1) (1986). He reserved the right to appeal the district court's ruling upholding the legality of a warrantless search of his motel room and denying his motion to suppress evidence seized from that room. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

On January 26, 1987, at approximately 3:45 p.m., the Escondido Police Department received a phone call from the manager of the Escondido Super Seven Motel. A maid had entered Room 228 to clean and had noticed a strong chemical odor and a cord running underneath the bathroom door. She also had heard a strange motor-type noise coming from the bathroom and saw a towel stuffed under the door. The maid left the room immediately and contacted the manager. The manager returned to the room with the maid and made the same observations. Due to these observations, the manager called the police.

Detective Milks arrived at the motel shortly after the police department received the manager's phone call. The manager took Detective Milks to Room 228 and opened the door. From the threshold, Detective Milks observed glassware, boxes, and a heat regulator which was plugged in and operating. He also detected a strong chemical odor which he associated with the manufacturing of methamphetamine. He secured the room and contacted Agent Grapoli, who was assigned to the San Diego Integrated Narcotics Task Force. Because of the possibility of a fire due to a chemical explosion, Detective Milks directed the evacuation of the surrounding rooms in the motel. Other officers on the scene contacted the Escondido Fire Department and notified them of the potential fire hazard.

Agent Grapoli arrived at the motel approximately 20 to 30 minutes after receiving the call from Detective Milks. He went to Room 228, knocked on the door and demanded entry, identifying himself as a police officer. He did not receive a response. He then entered the room to ascertain the volatility of the suspected chemical laboratory. He made the same initial observations as did Detective Milks. He then entered the bathroom and saw a large triple-neck flask in a heating mantel. The flask was three-quarters full of a boiling reddish liquid. Agent Grapoli recognized the setup as an illegal methamphetamine lab.

Agent Grapoli then closed the room and consulted with the firemen who had arrived at the scene as to the action which should be taken. Because the firemen were unsure of the proper action to take, Agent Grapoli placed a call to Marion Lowe, a chemist at the Drug Enforcement Administration Laboratory. Mr. Lowe instructed Agent Grapoli to unplug the apparatus, but to keep water flowing through the system to avoid an explosion or overheating. Agent Grapoli decided to await the chemist's arrival at the motel before disconnecting the apparatus.

The chemist arrived within thirty minutes of the call from Agent Grapoli. He then donned resuscitator-type gear and disconnected the apparatus, while keeping water flowing through it. Mr. Lowe confirmed that the setup was a methamphetamine lab. He also told the agents that they would need to wait several hours for the system to cool before disassembling it and disposing of the chemicals.

After securing the room, Agent Grapoli initiated a request for a telephone search warrant. At 6:00 p.m., a judge was located to review the warrant. At 8:24 p.m., having determined that all of the proper procedures had been followed, the judge issued the warrant.

Before the agents executed the warrant, a car with four occupants pulled into the motel parking lot. Lucatorta was one of the four occupants. Lucatorta entered Room 228 and was subsequently arrested. A copy of the guest receipt for Room 228 obtained from the desk clerk identified Lucatorta as the registered guest for that room.

At approximately 8:40 p.m., Agent Grapoli executed the search warrant. The items seized from Room 228 included a 22-liter flask approximately three-quarters full of reddish liquid, condenser tubes, a heating mantel, and miscellaneous supplies used in the manufacturing of methamphetamine.

Lucatorta moved to suppress the evidence seized from the motel room. This motion was denied. The district court found that the initial entries into the room by the maid and motel manager were "private searches" not protected by the Fourth Amendment, citing United States v. Jacobsen, 466 U.S. 109, 113 (1984). The district court then concluded that Detective Milks' and Agent Grapoli's warrantless entries were also valid, because their observations did not infringe any further upon Lucatorta's privacy expectations than had already occurred as a result of the "private searches," citing Jacobsen, 466 U.S. at 117. The district court also found the entrances by the two officers to be justified due to exigent circumstances.

The district court erred in finding that the searches were valid under Jacobsen. That case simply does not stand for the proposition that police searches that follow identical private searches withstand Fourth Amendment scrutiny simply because they are second in time. However, the district court was correct in concluding that the searches were valid because of exigent circumstances.

In order to determine whether exigent circumstances were present, " [t]he totality of the circumstances known to the officer at the time of the intrusion" must be evaluated. United States v. Warner, 843 F.2d 401, 404 (9th Cir. 1988). Thus, our initial focus must be upon the facts available to Detective Milks prior to his observations of room 228. Exigent circumstances will be found where "a reasonable person ... [would] ... believe that entry (or some other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, ... or some other consequence improperly frustrating legitimate law enforcement efforts." Id. at 403.

The record in this case establishes the existence of exigent circumstances. From the descriptions given him by the maid and the motel manager, it was reasonable for Detective Milks to believe that the laboratory setup was potentially extremely dangerous. Both Detective Milks' observation of the motel room and Agent Grapoli's entry and observation of the room and bathroom were justified by the danger that an operating methamphetamine lab would present to the lives of the other motel guests, the officers themselves, and to surrounding property. See United States v. Echegoyen, 799 F.2d 1271, 1278-79 (9th Cir. 1986). Our conclusion that exigent circumstances existed is buttressed by the actions of the officers upon entering the motel room to reduce or eliminate the possibility of an explosion. That Agent Grapoli waited for the chemist to come to turn off the apparatus does not change this conclusion. Indeed, the facts suggest that this was a prudent course of action.

The situation in this case thus contrasts sharply with that in Warner. In that case, the court held that exigent circumstances were not present where the government had no reason to believe that a dangerous illicit drug lab was in actual operation. Warner, 843 F.2d at 404. Rather, the police officer had been informed of the storage of certain chemicals that he knew were used in manufacturing illegal drugs. Id. at 402. Here, the police were given reason, prior to entering Room 228, to suspect that an unattended, fully functioning methamphetamine lab was in operation in that room. It was reasonable for Milks to presume that the laboratory setup described by the motel employees would be inherently unstable and an immediate danger.

Furthermore, the record establishes that it would have been impractical for the officers to obtain a telephonic search warrant. Echegoyen, 799 F.2d at 1279. " [O]btaining a telephonic warrant is not a simple procedure." Id. (quoting United States v. Good, 780 F.2d 773, 775 (9th Cir.), cert. denied, 475 U.S. 111 (1986)). The officers were confronted with a potentially dangerous explosion hazard from the operating methamphetamine laboratory. The officers took immediate action to shut down the lab and evacuate the area. Under these circumstances, we conclude that "the delay associated with obtaining a telephonic warrant would have unduly increased the risk ... that the officers reasonably believed to be [present]." Good, 780 F.2d at 775.

Thus, we affirm the district court's finding that the warrantless search of the motel room was legal. Moreover, the search warrant which was later obtained and executed upon was based on legally obtained information. Accordingly, the district court properly denied Lucatorta' motion to suppress.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. Rule 36-3